(dissenting).
I dissent from the position announced by my colleagues. If I correctly penetrate their circumlocution, they erroneously in my view undertake (1) to weigh the evidence and (2) to supervise the police in their conduct of an investigation. This case assumes unusual proportions because at least a dozen other convictions are already backed up awaiting a decision here. My colleagues would substitute their determination as to what should be done for that of at least 144 jurors who had heard the evidence in the cases mentioned and who had found to their satisfaction, that the Government had proved guilt beyond a reasonable doubt.
In terms of the first point, my colleagues sense a lack of “reassuring corroboration,” they say. Only about a year ago we decided Wilson v. United States.1 There we said:
“We have heretofore held on several occasions that the uncorroborated testimony of a narcotics agent is sufficient to support conviction for violation of the narcotics laws.” 2
We denied rehearing en banc, although three judges would have granted the petition. The latter thought that where arrest had been delayed for six months following the date of the alleged offense, the memory of the narcotics agent might be blurred. Moreover, the accused might have been able to show that she was elsewhere at the time of the offense. Of course, she could have made no such showing, if in fact she had sold narcotics to the officer at the time, date and place as testified by him. So, here, Ross testified that he had never sold narcotics to Bush. He added that he had never even seen Bush until he met him at the hearing before the • Commissioner. I will mention other details on this score in due course, but I observe immediately that the majority position is directly contrary to the established law in this circuit. My colleagues say that a delay of seven months is too long, but that a delay of four months might be all right.
The position of my colleagues with respect to the manner in which police conduct their investigations seems to rest on the majority’s view that the police procedures are not “fair.” The federal courts, without exception as far as I can see, have held that a delay which occurs between the commission of an offense and the commencement of prosecution is controlled exclusively by the applicable statute of limitations.3 The matter of “delay” had been considered in Redfield v. United States4 where sales had been made to an undercover police officer. Seeking certiorari, the petitioner Redfield in his supporting memorandum had decried the “familiar pattern” of the undercover police officer who maintains his undisclosed status for many months “as long as he can be useful to the police in this manner.” He advanced arguments such as the majority here accepts. Specifically he sought the aid of the Supreme Court in ascertaining what delay might be an “unreasonably oppressive and unjustifiable time.” The Supreme *217Court denied the writ.5 The Government’s opposition had relied solely upon our opinion in Nickens v. United States, supra note 3.
After Redfield, in Hardy v. United States,6 we again considered a delay in arrest for eight months after the alleged offense. That case involved a transaction with a paid informant rather than a police officer. There Judge Washington would have imported an additional “corroboration” requirement. Again we denied a petition for rehearing en banc, although two of our judges would have granted the petition.
It seems to me that the law is clear, and is definitely contrary to the position the majority now asserts. I have no doubt that many judges like many lawyers, in their approach to these narcotics cases, are moved consciously or not by the heavy penalties which follow convictions for narcotics violations. But policy considerations in such matters are for Congress, not for the courts. Mr. Justice Frankfurter said as much in Gore v. United States.7 He had pointed out that the penalties prescribed by Congress reveal a legislative determination “to turn the screw of the criminal machinery- — ■ detention, prosecution, and punishment— tighter and tighter.”8 Other judges seem to think that a narcotics violator, if an addict, may be entitled to acquittal by reason of insanity.9
So, without the citation of a single authority contrary to our well-established law, my colleagues renew the assault upon the pre-arrest delay. They would have us in terms of an undefined standard of “fairness” make an ad hoc determination despite an error-free trial. A pre-trial motion to dismiss had been overruled and on that account, we had remanded for a hearing respecting the “reasonableness vel non” of the delay between offense and arrest and the effect of that delay upon the defense. An extensive hearing was held by the trial judge and the supplemental record is now before us. The majority say, as indeed they must, “[W]e have no reason to reject such facts as were found by the District Court.”
The trial judge had heard all of the evidence, both at trial and after remand. He could see that the police in establishing their cases against “pushers” like Ross were attempting to lay the foundation for locating their source of supply. The Officer Bush, “on the street” as he was, was bound to pursue a course of observation of the pattern of conduct of suspects; his investigation would have gauged the ease or difficulty in arranging a narcotics purchase, proximity to the possible source and information as to others with whom a “pusher” might be dealing. All that kind of thing was bound up in his finding that the investigation had been
“conducted in an efficient and effective fashion. As a result of the investigation, warrants were obtained for 51 persons whose unlawful activities were discovered by Private Bush in the course of his work. At the time of the hearing indictments had been obtained against 34 of those persons. Because of the clandestine nature of the business engaged in by the persons investigated, the use of an undercover agent to uncover that business was a practical necessity.”
About 12:25 A.M. on May 10, 1962, Officer Bush was seated in the New Re*218public restaurant on Seventh Street. Uninvited, Ross came to the booth and sat down and conversation followed. “How was that pill of Note’s?”, Bush asked. “Note,” as Bush knew, was a dealer who was believed to be operating in the neighborhood. Ross assured the officer as to the satisfactory quality of “Note’s” merchandise and asked Bush if he wanted to buy some. An order for three capsules was placed. Ross got up and left the restaurant, the officer followed him presently, and in 4 or 5 minutes Ross returned with three capsules of heroin, collected $4.50 from Bush, and the officer placed the capsules in an envelope, marked the envelope with the date and place and later that same day turned the contraband over to his superior, Detective Paul.
Thus, Officer Bush could qualify as a “reliable” source.10 On May 18, 1962, officers of the Narcotics Squad- — -not including Bush — armed with a search warrant, raided the home of “Note,” located only about two minutes walk from the New Republic restaurant. There they seized a quantity of narcotics. It developed that Ross lived in the same premises with “Note,” indeed he was outside the house at the time of the raid, he testified. The dealer, “Note” as it developed, was none other than James Castle whose conviction we affirmed11 on November 19, 1964. My colleagues assume that Ross suffered from a loss of memory as to the events of May 10th. He testified flatly, however, that he never sold any narcotics whatever to Bush. He testified fully with respect to the raid of May 18, even to full details as to his discussion with Officers Didone and Paul. He charged that the police were angry with him because he stated he intended to testify in behalf of Castle.
How many other narcotics cases involving the more important dealers have been developed as a result of the investigation by Officer Bush, we can not know from this record. That the efforts of Officer Bush were highly successful is clearly established, just as the trial judge found. I am unwilling to join my colleagues in striking down the Ross prosecution, even though narcotics violations are involved. The record here shows that he was in jail for some part of 1962, at least, on some other narcotics charge. I am unwilling to say as a matter of law that conviction of Ross for the May 10th violation was essentially unfair.
Perhaps greater importance should be accorded to the present issue, since experience has shown, a delayed arrest may be deemed essential in yet other areas of law enforcement. The passing of counterfeit money by one of many confederates is a ready instance of where the utterance of a single counterfeit note may seem of far less significance at the time than that the plates be located and the actual printers of the illicit currency be apprehended. Another example occurs in cases of use of the mails in furtherance of a scheme to defraud. In United States v. Graham, 102 F.2d 436, 440 (2 Cir.), cert. denied, 307 U.S. 643, 59 S.Ct. 1041, 83 L.Ed. 1524 (1939), an immediate arrest might have frustrated the entire enforcement effort. Other instances will come to mind where continued surveillance may be essential to proper law enforcement. How far and in what circumstances the rule announced by my colleagues might have impact in such situations, we can not know.
To return to Ross, the fact of a single prosecution does not negate his predisposition to engage in the nefarious enterprise. How many other sales he may have made to others on the night of May 10th, we do not know. That he was a “pusher” for the dealer “Note” is clear. Castle, alias “Note,” obviously is one of the dealer type so importantly the target of police investigation in narcotics cases. Repeatedly we have been made aware from records before us of just how anxiously those accused of narcotics violation seek to ascertain the identity of *219an undercover police officer. Whether or not there existed in this case a necessity to protect Officer Bush was involved in our order of remand. I believe to be correct the conclusion of the trial judge that the delay under attack here was not unreasonable. He established the basis for his ultimate determination by findings which I now quote:
“(4) Application for arrest warrants and commencement of prosecution against the individuals whose unlawful activities were detected by Private Bush required disclosure of the officer’s true identity. At such time as that disclosure might occur, termination of the investigation would be mandatory. Bush could not work in an undercover capacity after his identity was revealed. In order to allow the investigation to continue, warrants were not obtained for the individuals involved until the investigation was closed.
“(5) The decision to terminate the investigation was made by Private Bush’s supervisors and the head officer of the Narcotics Squad. Three factors were considered in determining that the investigation should be closed: 1) The time which had already been consumed by the investigation; 2) the growing danger to Private Bush arising from the increased possibility that his identity might be learned by the people he was investigating; and 8) the decreased efficiency of the investigation resulting from repeated contacts with individuals whose identity as drug peddlers was already established.”
The trial judge also found that Ross had been arrested only two days after the investigation conducted by Private Bush had been closed. In my appraisal, the substantial traffic in narcotic drugs in the District of Columbia was properly under attack in this case, just as in others like it. See, e. g., Morgan v. United States.12
It is common knowledge that the spread of addiction results almost entirely from sales by one who is a user. It is primarily on that account that the Federal Bureau of Narcotics directs its activity against those who traffic in heroin in the Bureau’s effort to reduce the availability of the contraband to a minimum. According to Commissioner Henry L. Gior-dano, the records of the Bureau of Narcotics demonstrate that at least 125 new cases of addiction annually occur in the District of Columbia.13 The President’s Advisory Commission on Narcotic and Drug Abuse reached the conclusion:
“The illegal traffic in drugs should be attacked with the full power of the federal government. The price for participation in this traffic should be prohibitive. It should be made too dangerous to be attractive.” 14
Because I fear great mischief will flow from the court’s action in this case, I respectfully dissent.
. 118 U.S.App.D.C. 319, 335 F.2d 982 (1963).
. Id. at 320, 335 F.2d at 983.
. See, e.g., Harlow v. United States, 301 F.2d 361, 366 (5 Cir.), cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962); and see Nickens v. United States, 116 U.S.App.D.C. 338, 339, 323 F.2d 808, 809 (1963).
. 117 U.S.App.D.C. 231, 328 F.2d 532 (1964).
. 377 U.S. 972, 84 S.Ct. 1654, 12 L.Ed.2d 741 (1964).
. 119 U.S.App.D.C. 364, 343 F.2d 233 (1964), cert. denied, 380 U.S. 984, 85 S.Ct 1353, 14 L.Ed.2d 276 (1965).
. 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed. 2d 1405 (1958).
. Id. at 390, 78 S.Ct. at 1283.
. Brown v. United States, 118 U.S.App. D.C. 76, 331 F.2d 822 (1964), cited in Castle v. United States,-U.S.App.D.C. -, 347 F.2d 492 n. 1 (Nov. 19, 1964), cert. denied, 85 S.Ct. 1568, 1811 (1965), but see discussion by Judge Burger,-; Heard v. United States,-U.S.App.D.C. --, 348 F.2d 43 (Dec. 17, 1964), petition for rehearing en lane denied May 12, 1965, majority opinion modified May 14, 1965.
. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).
. Supra note 9.
. 115 U.S.App.D.C. 310, 319 F.2d 711, rehearing en banc denied, cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963). There the court noted:
“The convictions rest primarily upon the testimony of an officer of the Nar-cotíes Squad that he bought narcotics from appellant. True, there was alibi evidence on behalf of appellant, but the question of his guilt was for the jury to decide, and this they did.”
. In testifying before the House Committee on Appropriations, 88th Cong., 2d Sess., Commissioner Giordano introduced for the record various charts. The District of Columbia was shown fifth among the ten leading cities in the United States in active narcotics addicts as of December 31, 1963 with a known total of 1.021 addicts. His statistics of new narcotics addicts over the five years listed read:
1959 1960 1961 1962 1963
District of Columbia 125 159 130 127 133
. Final Report, November 1963, p. 3.